Inheritance vs legacy in Spain: what changes for you
The difference between an inheritance and a legacy under Spanish law lies in what you receive and with what burdens. The heir succeeds the deceased in their whole estate or in a proportional part of it (a half, a third…), with its assets and also its debts. The legatee receives a specific asset or right (a house, a sum of money, some jewellery) and, in principle, is not liable for the debts of the estate. That is how Article 660 of the Spanish Civil Code defines it: an heir is someone who succeeds “by universal title” and a legatee someone who succeeds “by particular title”.
The same person can be both heir and legatee, and the will can name them one way or the other regardless of whether they are a relative or not. What matters is not the word the will uses, but what is actually left to them.
Inheritance and legacy, side by side
| Heir | Legatee | |
|---|---|---|
| What they receive | The whole estate or a share of it | A specific asset or right |
| The deceased’s debts | Liable for them (unless they accept under benefit of inventory) | In principle, no |
| Possession of the asset | Takes part in the division and the administration | Must ask the heir or the executor (albacea) to hand it over |
| Inheritance tax | Pays on what they receive | Pays on what they receive |
| If they renounce | Their share passes to the others according to the law or the will | The asset returns to the estate, unless there is a substitute or accrual |
The debts: the difference that matters most
Anyone who accepts an inheritance outright (pura y simplemente) is liable for the deceased’s debts not only with the inherited assets, but also with their own. That is why, when it is not clear whether there are debts, people accept under benefit of inventory (a beneficio de inventario): the heir is only liable up to the value of the assets in the estate.
The legatee, by contrast, receives their asset without taking on the debts. There are two important qualifications:
- If the whole estate is distributed in legacies, the debts are apportioned among the legatees in proportion to what each one receives, unless the testator has provided otherwise (Article 891 of the Civil Code).
- Creditors are paid before legatees: if the debts eat up the estate, the legacies may be reduced or come to nothing.
Who pays the taxes and costs of a legacy?
Two things need to be separated:
- Handover costs: those needed to hand over the bequeathed asset (for example, the deed in which the heirs hand it over) are borne by the estate, always without harming the forced heirship share (legítima) (Article 886 of the Civil Code).
- Taxes: inheritance tax is paid by each person on what they receive, the legatee included. If the legacy is an urban property, the municipal capital gains tax (plusvalía municipal) falls on whoever acquires it, that is, the legatee. And registering it in their name at the Land Registry (Registro de la Propiedad) is also their cost.
The testator can change this allocation, for example by providing that the legacy be handed over free of costs and taxes, so that the estate pays them. If they say nothing, the general rule applies. The amount of tax depends a great deal on the region (autonomous community) and on the family relationship: you can get an estimate with the inheritance tax calculator.
When do you become the owner of a legacy?
The legatee acquires the right to the legacy from the testator’s death, and if they die before receiving it, that right passes to their own heirs (Article 881). When the legacy is of a specific thing that belonged to the testator, the legatee is the owner from that moment and is entitled to the pending fruits and income, but not to income that had accrued and had not been collected before the death (Article 882). From then on, moreover, the thing is at their risk: if it is lost or deteriorates, they bear the loss; if it gains in value, they benefit.
That said, being the owner does not mean being able simply to take the asset. Article 885 prevents the legatee from taking possession of the bequeathed thing on their own initiative: they must ask for it to be handed over by the heir or by the executor, if the latter is authorised to do so. In practice, to register a bequeathed property at the Land Registry, a deed of delivery of the legacy is usually signed. If the heirs refuse to hand it over without good reason, the legatee can claim it. And if the deadlock is among the heirs themselves, see what to do if your siblings won’t divide the inheritance.
When does a legacy harm the forced heirship share?
The testator can only freely distribute the part of the estate that is not reserved for the forced heirs. A legacy harms the forced heirship share when, because of its value, it leaves a forced heir with less than the law entitles them to. This happens, for example, when a friend is left a house worth more than the whole third of free disposal.
In that case the legacy is not void, but excessive (inoficioso): it is reduced by the excess (Article 817). The Civil Code sets an order: first the legacies are reduced, pro rata, and only then the gifts the deceased made during their lifetime (Article 820). There is a special rule for legacies of a life interest (usufructo) or life annuity that exceed the disposable part: the forced heirs can choose between honouring them or handing that free part over to the legatee. If you want to go over which part of the estate is forced heirship and which is free, we explain it in how an inheritance is divided by law.
When the legatee is one of the children, the legacy is counted towards their forced heirship share and, if the will does not say otherwise, it is not treated as an improvement (mejora) unless it does not fit within the free part (Article 828). If what they receive does not cover their forced heirship share, they can ask for it to be topped up.
Which is better, an inheritance or a legacy?
There is no single answer: it depends on what the person making the will wants to achieve and on the situation of the estate.
- A legacy fits when you want someone to receive a specific asset (the home to a child, a sum to a nephew or niece, a family keepsake) without involving them in the division or the debts.
- An inheritance fits when you want that person to share in the whole estate and have a say in its administration and in the partition.
- For the recipient, a legacy is more convenient if the estate has debts, but it depends on the heirs handing the asset over.
In practice, many wills combine both: heirs for the estate as a whole and legacies for specific assets. If you are preparing yours, or have received a legacy and don’t know how to claim it, you can tell a wills and legacies lawyer about your case: we put you in touch with a specialist who will review the will and tell you what suits you best.
Frequently asked questions
Can you renounce a legacy?
Yes. The legatee can reject the legacy without giving up what they are entitled to on any other basis. If they reject it, the asset returns to the estate, unless the will provides for a substitute or the right of accrual (derecho de acrecer) comes into play.
Can a child receive a legacy on top of their share of the inheritance?
Yes. What they receive as a legacy is counted first towards their forced heirship share and, if it exceeds it, towards the free part. It is only an improvement if the testator says so expressly or if it does not fit within the free part.
Does the legatee have to wait until the whole estate has been divided?
Not necessarily: they hold the right from the death, but must ask the heir or the executor to hand it over. If the estate has debts, the heirs can wait to find out whether the assets are sufficient before handing over the legacies.
Who pays the plusvalía on a flat left as a legacy?
Whoever receives it, that is, the legatee, because they are the one acquiring the property. The will can provide that the estate bears the taxes.
